Crocker C. v Anne R.Annotate this Case
Decided on September 18, 2015
Supreme Court, Kings County
Crocker C., Plaintiff,
Anne R., Defendant.
Carolyn A. Byrne, Esq.
Attorney for Plaintiff
140 E. 45th Street, 25th Floor
New York, New York 10017
Raoul Felder and Partners
By: Raoul Felder
Attorney for Defendant
437 Madison Avenue
New York, New York 10022
Louisa Floyd, Esq. Attorney for Children
26 Court Street, Suite 1503
Brooklyn, NY 11242
Jeffrey S. Sunshine, J.
Introduction and Background
The nexus between spyware and modern technology in the age of internet and digital communication and the constitutional protections offered by the Fifth Amendment come together in this matrimonial action where defendant alleges that plaintiff "jail broke" her iPhone and installed "spyware" which he allegedly used to intercept and monitor her confidential communications, including those between defendant and her matrimonial counsel.
On May 15, 2015 the defendant ("wife") moved by order to show cause [FN1] [motion sequence No.4] requesting the following relief: "a) directing the Plaintiff to immediately turn over to the Defendant's attorneys, for inspection, forensic imaging and analysis by Cyber Diligence, Inc., all of his computing devices, included, without limitation, his desktop computer, his laptop computer and any prior computer that the Plaintiff may have used that is under his control, as well as any hard drives that have been replaced, modified or refurbished, his iPad and his cellular telephones, as any such computing devices hold or held communications and information belonging to the Defendant and that were obtained by the Plaintiff himself or at the Plaintiff's direction, without the Defendant's knowledge or authorization; b) directing the Plaintiff to immediately turn over to the Defendant's attorneys, the originals and copies of all documents, records, materials, communications and information, in any form, including, but not limited to electronic mail and/or other electronic means, relating to his purchase and/or use of the modality mSpy, Pangy, IPVANISH, and/or any other related or similar entity, software or program modality, as such entities, software and program modalities were used by the Plaintiff , or at his direction, to obtain the Defendant's communications and information without her knowledge or authorization; c) directing the Plaintiff to immediately turn over to the Defendant's attorneys any and all documents and records, including, but not limited to, communications, electronic or otherwise, in connection with mSpy or its affiliates, including, without limitation, all e-mails received by the Plaintiff from mSpy and all e-mails sent by the Plaintiff to mSpy or its affiliates; d) directing the Plaintiff to immediately turn over to the Defendant's attorneys the originals and copies of all of the Defendant's documents, records, materials, communications [*2]and information, in any form, including, but not limited to, electronic mail and/or other electronic means, which were accessed or obtained by the Plaintiff, or at his direction; e) setting down the within matter for an immediate hearing, or such date that the Court may deem appropriate, to determine the extent to which the Plaintiff, and any third-party/parties presently or previously under his control or available to him, had or has knowledge or information, including privileged communications, that were obtained from the Defendant without her knowledge or authorization; f) staying the within action until the Court determines the extent to which the Plaintiff, and any third-party/parties, had or has knowledge or information, including privileged communications, that were obtained from the Defendant without her knowledge or authorization; and g) granting to the Defendant such other and further relief as the Court deems just and proper under the circumstances."
Defendant's counsel filed an affirmation of emergency pursuant to 22 NYCRR 202.7(f) affirming that he did not notify plaintiff or plaintiff's counsel regarding the application and relief requested because "[g]iving them notice will result in significant prejudice to the Defendant in that the Plaintiff will have an opportunity — all it will take is for the Plaintiff to click one button or find one dumpster — to alter or destroy" evidence of his alleged "illegal wiretapping" of defendant and interception of her confidential communications. Plaintiff's counsel notified the attorney for the children of the emergency application. The attorney for the children appeared for the oral argument.
Defendant's counsel alleges that while the parties were living together and approximately three (3) weeks before plaintiff commenced this matrimonial action against defendant that plaintiff breached defendant's iPhone security — which is commonly referred to as "jail breaking" the iPhone — and then installed spyware (mSpy) which he asserts was tantamount to "bugging" defendant's iPhone. Defendant's counsel argues that the spyware gave plaintiff the ability access in real-time "all of Defendant's communications, including her privileged communications, such as her e-mails, text messages, call history and logs, as well as other information, including the ability to access the Defendant's physical location via GPS tracking." He further argues that plaintiff "bugged" defendant's iPhone without her knowledge or consent and then used his access to surreptitiously and remotely intercept, access and monitor her communications from his computing devices. He further alleges that plaintiff covered up his access of defendant's communications by attempting to conceal his internet identity using a software program called IPVANISH.
Defendant's counsel alleges that plaintiff's bank records and credit card statements produced during discovery "reveal that he purchased, several times, the mSpy spyware program and well as the IPVANISH program..." Defendant's counsel affirmed that when he questioned plaintiff during his deposition about these purchases and whether he "jail broke" defendant's iPhone and/or installed spyware on her iPhone that plaintiff invoked his Fifth Amendment privilege against self-incrimination approximately fifty-eight (58) times.
In support of his application, defendant's counsel annexed an "Expert's Affidavit" from Yalkin Demirkaya, President of Cyber Diligence, Inc, former Commanding Officer of [*3]the Computer Crimes Investigation Unit of the New York Police Department's Internal Affairs Bureau, a certified digital forensics examiner and a NSA certified information security assessor. According to Mr. Demirkaya's affidavit, dated May 13, 2015, his investigation revealed that defendant's iPhone was "jail broken" on October 6, 2014 at 1:32 A.M. and that approximately fourteen (14) minutes later, at 1:46 A.M., "mSpy" spyware was installed. Defendant's affidavit states that only she, the plaintiff, and the parties' two (2) minor children lived in the marital residence on October 6, 2014 and that she did not jailbreak her iPhone or give plaintiff permission to do so.[FN2] Mr. Demirkaya's affidavit detailed that once "mSpy" software is installed "a computer, cellular telephone or mobile tablet, such as an iPad, must be used to log-in to the mSpy' website/portal" and that having done so the user has access to "information on the victim's iPhone." Mr. Demirkaya avers that plaintiff's computing devices "should be produced for ... inspection, forensic imaging and analysis" to determine "the extent" to which plaintiff may have illegally accessed and intercepted defendant's communications and other information. He further averred in his affidavit that plaintiff's "computing devices can be forensically imaged with minimal inconvenience to him."
Defendant's counsel affirms that he seeks "only the Defendant's communications, information and materials that were improperly intercepted or obtained" and not "any of the Plaintiff's own business records, communications with his counsel, etc."
Defendant's counsel argued that the records and materials sought, including plaintiff's computing devices, "are either with the Plaintiff or are located in the former marital residence and under the exclusive control of the Plaintiff" because he has exclusive use and occupancy of the marital residence and there is a temporary order of protection prohibiting defendant from entering the marital residence.
Defendant's counsel sought ex parte relief in the form of an order directing, inter alia relief, that plaintiff turn over his computing devices to defendant's attorneys "for inspection, forensic imaging and analysis"; that plaintiff turn over all materials, in any form, which he accessed using the spyware he installed on defendant's iPhone; that plaintiff be restrained from destroying, tampering with or disposing of any computing devices or materials he accessed using spyware he installed on defendant's iPhone; and staying the action "until the Court determines the extent to which the Plaintiff, and any third-party/parties, had or has knowledge or information, including privileged communications, that were obtained from the Defendant without her knowledge or authorization."
After oral argument on the record on May 15, 2015, the Court took a recess and thereafter on that same day issued the following order:[*4]ORDERED: Defendant's counsel shall service of copy of this Order to Show Cause upon the Sheriff of the City Of New York at SHERIFF'S HEADQUARTERS, EVIDENCE ROOM, 3010 STARR AVENUE, LONG ISLAND CITY, NEW YORK 11101 no later than Monday, May 18, 2015 at 10:00 a.m.; and it is further,
ORDERED: That the Sheriff of the City Of New York shall personally serve this Order to Show Cause and supporting affidavits and affirmations to plaintiff no sooner than Monday, May 18, 2015 at 1:00 p.m.; and it is further,
ORDERED: That the Sheriff of the City Of New York shall facsimile an affidavit of service to defendant's counsel (TELEPHONE NUMBER OMITTED) and to the Court (TELEPHONE NUMBER OMITTED) forthwith when service of this Order to Show Cause has been made upon plaintiff; and it is further,
ORDERED: That upon notice from the Sheriff of the City Of New York that service upon plaintiff is complete the defendant's counsel shall forthwith personally serve to plaintiff's counsel the Order to Show Cause, together with supporting documents; and it is further,
ORDERED: Upon presentation of this order, plaintiff shall immediately turn over to the Sheriff of the City Of New York for safekeeping, under seal, any and all computing devices, including without limitation, any personal or business computer, external hard-drives, iPad, cellular telephone and/or devices having networking/internet capability in his possession; and it is further,
ORDERED: That the Sheriff of the City Of New York is directed to take and to hold any devices received from plaintiff in connection with this order until further order of the Court; and it is further,
ORDERED: The plaintiff shall not, until further order of the Court, delete, sanitize or alter any information stored in online storage accounts, "clouds" or any other accounts that store digital information; and it is further,
ORDERED: The plaintiff shall not, until further order of the Court, authorize or direct any other individual to delete, sanitize or alter any information stored in online storage accounts, "clouds" or any other [*5]accounts that store digital information; and it is further,
ORDERED: The plaintiff shall not, until further order of the Court, access or authorize or direct any other individual to access any accounts with mSpy, Pangu, IPVANISH, and/or any other related or similar entity or affiliate or related software or program; and it is further,
ORDERED: The plaintiff is, until further order of the Court, restrained and
enjoined from destroying, tampering with or disposing of the originals and/or copies of any and all records, in any form, related to purchase and/or use of services from mSpy, Pangu, IPVANISH, and/or any other related or similar entity or affiliate or related software or program and he shall not authorize or direct anyone else to destroy, tamper with or dispose of the originals and/or copies of any and all records, in any form, related to purchase and/or use of services from mSpy, Pangu, IPVANISH, and/or any other related or similar entity or affiliate or related software or program; and it is further,
ORDERED: That neither the Sheriff of the City Of New York, the Sheriff of the City Of New York's representatives, the defendant or defendant's attorneys or agents shall have access to the contents on any said devices pending further order of the court; and it is further,
ORDERED: The part clerk of Part 5G shall maintain original order to show cause under seal in the above-captioned file until such time as service has been accomplished or pending further order of the Court and no further entry shall be made on the Court's computer system shall be made pending notice of service having been accomplished as detailed herein by the Sheriff of the City of New York; and it is further, ...
The order also provided, as relevant hereto,
ORDERED: The Sheriff of the City Of New York is directed to serve a copy of the continued temporary order of protection on plaintiff no sooner than Monday, May 18, 2015 at 1:00 p.m. together with the Order to Show Cause and supporting papers as detailed herein above; and it is further,
ORDERED: The minutes of today's proceeding are sealed until such time as service is accomplished by the Sheriff of the City of New York or further order of the Court.
Defendant's emergency application was made late on a Friday afternoon. To ensure that plaintiff was without his computing devices for the shortest duration of time before he could be heard on defendant's application while also providing plaintiff an opportunity to confer with his counsel after service of the order to show cause and prior to the return date, the Court directed that the Sheriff of the City Of New York take and hold any devices received from plaintiff in connection with the Friday, May 15, 2015 order after 1:00 P.M. on Monday, May 18, 2015. The Court set the return date of defendant's order to show cause for Wednesday, May 20, 2015 at 9:30 A.M.[FN3] In doing so, the Court crafted relief that avoided plaintiff being deprived of his computing devices for the weekend.
The Sheriff of the City of New York submitted an affidavit of service of the order to show cause reflecting that service was completed on May 19, 2015 at 9:19 a.m.. The Sheriff of the City of New York also provided the Court with an inventory of computing devices which plaintiff surrendered in response to the May 15, 2015 order.[FN4] The Court provided copies of the inventory to counsel at the court appearance on May 20, 2015.
On May 20, 2015, plaintiff and counsel appeared and requested time to submit opposition papers to defendant's order to show cause. On the record, plaintiff's counsel detailed that she believed defendant's application to be an "absolutely outrageous motion" full of what she classified as "shocking allegations...." She argued that her client stood "absolutely ready to defend every source of every piece of information" that plaintiff had put forth in the proceeding and that she would do so by cross-motion that was "in the works" alleging failure to pay certain support obligations. She alleged that due to his computer devices being turned over to the Sheriff of the City of New York pursuant to the Court's May 15, 2015 order plaintiff had incurred the expense of purchasing a new computer and iPhone.
Defendant's counsel argued on the record that it was improper for plaintiff to purchase a new computer and cell phone after his were turned over to the Sheriff of New York pursuant to the Court's May 15, 2015 order. Defendant's counsel alleged that [*6]plaintiff could have used the new computer equipment to "sanitize" whatever may have been stored in a "cloud" related to the May 15, 2015 order. Defendant's counsel requested that "we have some assurance in testifying under oath that he is not taking any steps to do all the things that he was ordered not to do, sanize, alter or anything in the cloud." Plaintiff's counsel represented on the record that she "can represent on behalf of [her] client and [her] client can testify under the penalties of perjury that he has not in any way disobeyed any Court order with respect to sanitizing or destroying any sort of evidence...." Based upon plaintiff's application for time to submit responsive papers the Court adjourned, on consent, the pending order to show cause to May 29, 2015 and set a briefing schedule for opposition and reply papers and oral argument.
On May 29, 2015, plaintiff filed an order to show cause seeking an order of the Court for various relief and in opposition to defendant's order to show cause. Relief requested as items (a) through (c) of plaintiff's May 29, 2015 order to show cause related to interim custody and access was denied by the Court on the record, after extensive oral argument, on May 29, 2015.[FN5] The remaining relief requested was adjourned, on consent, to July 15, 2015 for opposition and reply papers. Relief requested as item (d) of plaintiff's May 29, 2015 order to show cause relating to reallocation of costs associated with supervised visitation is hereby reserved to the trial court.
The remaining relief requested by plaintiff in motion sequence #5 which is before the Court for purposes of this decision and order is as follows: "e) compelling Defendant to pay her agreed upon share of add ons for the month of April, as required by the parties' Stipulation resolving Motion Sequence #2, and which she has heretofore failed to do; f) instructing the Defendant to sit for the remainder of her deposition, originally scheduled for May 28 and summarily cancelled by Defendant's counsel on May 20, 2015; g) As part of the above-referenced deposition, overruling Mr. Felder's instruction that defendant not answer questions and provide documents related to alleged gifts of $5,000,000 from her mother that was specifically discussed on October 20, 2014, as well as any other gifts, transfers, or loans which may have transpired or may have been postponed until the [*7]conclusion of this litigation; h) as part of the above-referenced deposition, overruling Mr. Felder's instruction that Defendant not answer questions and provide documents related to the services rendered by John Nazarian, private detective, in exchange for the direct payment she provided to him from her Chase checking account, as such information is necessary to determine the scope of potentially illegal evidence gathering; i) as part of the above-referenced deposition, requiring Defendant to answer questions and provide documents related to the services rendered by Perimeter security, in exchange for the direct payment she provided to that entity on November 6, 2014; j) ordering Defendant and her counsel to cease and desist from any wiretapping, eavesdropping (whether recorded or unrecorded), trespassing, or any other illegal acts; k) compelling Defendant to provide written responses to the Plaintiff's Interrogatories, which were due on March 24, 2015 and not provided; l) compelling Defendant to respond to the Plaintiff's First Notice for Discovery and Inspection, as well as the documents and information requested at her still-incomplete deposition of May 8, 2015; m) awarding Plaintiff's counsel $10,000 for the cost of making this cross motion to remedy Defendant's violations of the custody stipulation (motion sequence #1) as well as the financial stipulation (motion sequence #2), and her failure to produce requested information in this action; n) awarding Plaintiff's counsel $350,000 in interim counsel fees, in light of Defendant's payments to Mr. Felder totaling at least $959,000 so far, without prejudice to an additional application if needed prior to trial; o) compelling the Plaintiff to produce her legal, expert, and/or forensic bills and proofs of payment in this case, to determine whether additional monies beyond the $959,000 to Mr. Felder have been paid by Defendant or anyone on her behalf in connection with this litigation; p) together with such other and further relief as to the Court may seem just and proper..."
Spyware, the Fifth Amendment and Seizure of Plaintiff's Computing Devices
In opposition to defendant's May 15, 2015 order to show cause, plaintiff argues that defendant's request that the Court order his computers seized is a "full scale fishing expedition" with the sole purpose of accessing his "private communications" and without any basis. Plaintiff refers to defendant's application as a "sideshow of a motion" that he argues is merely an attempt to "shift...focus away" from the pending forensic report. He alleges that defendant's application was "perfectly timed to interfere with the delivery of the report issued by the forensic psychiatrist" because, he alleges, "Defendant...suspected" that the pending forensic report "would not be favorable to her." He also argues that the seizure of his computing equipment took place "just ten days" after he began a "time-sensitive trial" with a business where he hoped to obtain a full-time position and that defendant is using the circumstances to put further financial pressure on him.
Defendant's counsel affirms in his June 10, 2015 reply that the timing of the application was not made to interfere in any way with the release of the pending forensic report. In support of his argument, defendant's counsel contends that both defendant and [*8]plaintiff continued to provide additional information to the court-appointed forensic evaluator after defendant filed her application on May 15, 2015. Defendant's counsel also affirms that there has been no delay in paying the court-appointed forensic evaluator.
Defendant's counsel further affirms that his filing of the emergency application was not timed to interfere with the pending litigation. He affirms that although defendant's computer expert discovered that defendant's iPhone had been jail-broken on February 6, 2015 they were not in possession of subpoenaed bank records showing that plaintiff purchased mSpy and IPVANISH until mid-April 2015. Defendant's counsel further affirms that it was not until plaintiff's continued deposition on May 8, 2015 when plaintiff "repeatedly invoked the 5th Amendment when asked about his purchase and use of mSpy as well as his use of mSpy in conjunction with IPVANISH" that he was "[a]rmed — for the very first time — with the absolute proof that [plaintiff] committed the acts involved" and that his firm worked from Friday, May 8, 2015 through May 14, 2015 to prepare defendant's application as expeditiously as possible.[FN6]
Plaintiff further argues in his opposition that "Defendant's argument is essentially that since [he] invoked the Fifth Amendment privilege with respect to deposition questions about certain purchases from Avangate, pre-commencement, that somehow this is an admission that [he] used ill-gotten information" in the pending litigation.[FN7] Plaintiff argues that he "would have categorically denied" that "Avangate had anything to do" with information he used in the pending litigation. Plaintiff further avers that "all of the wrongdoing of which Defendant has accused [him] in the current motion, none of it has anything to do with the best interests of the children or the finances of this case." Plaintiff argues that defendant's application is nothing more than an attempt to distract the Court from defendant's alleged "misbehavior...." during the marriage and the litigation.
Plaintiff does not dispute that he repeatedly asserted his Fifth Amendment privilege during his deposition in response to questions involving his purchase of spyware and whether he used that spyware to monitor defendant's confidential communications. Plaintiff contends that he only invoked his Fifth Amendment privilege "out of an abundance of caution, when the questioning turned to certain purchases to Avangate, a legal entity." Plaintiff does not specifically address defendant's allegations that he purchased spyware; jail-broke defendant's iPhone and installed spyware; and used the spyware to monitor her confidential communications in his opposition because, he asserts that he cannot address those issues having previously invoked the Fifth Amendment privilege during his deposition. While continuing to assert the privilege and refuse to [*9]answer the questions relating to spyware and monitoring defendant's iPhone plaintiff avers that his "sources of information [used during the litigation] are absolutely legitimate" including conversations with defendant and defendant's boy-friend; from the family computer; and from the "children's unpromped utterances" to him. Plaintiff requests that the Court deny defendant's motion in its entirety.
Defendant's counsel filed a reply affirmation date June 10, 2015 in further support of defendant's May 15, 2015 [motion sequence #4].[FN8] Defendant's counsel avers that plaintiff invoked the Fifth Amendment privilege at his deposition fifty-eight (58) times including to questions "relating to his purchase of the mSpy subscription" for a "Premium" package. Defendant's counsel argues that payments for mSpy and IPVANISH were traced to plaintiff's bank records and, in support, he annexes copies of banking records to his affirmation dated June 10, 2015. Defendant's counsel argues that plaintiff's explanation that he obtained his information only from legitimate sources is not believable given that he allegedly had access to defendant's confidential communications through spyware he installed on her iPhone. Defendant's counsel argues that the portion of plaintiff's order to show cause [motion sequence #5] which is opposition to motion sequence #4 should be "stricken" because, he argues, plaintiff cannot assert the Fifth Amendment privilege in response to deposition questions related to whether he jail broke defendant's iPhone, installing spyware and used that spyware to monitoring her location and confidential communications and then, in the same proceeding, subsequently offer "an affidavit in which he tries to deal with these very issues..." Defendant's counsel argues that "after [plaintiff] invoked his Fifth Amendment privilege in refusing to answer questions on a transaction or related transactions, he cannot now pick and choose when, concerning the same transaction to explain it in his affidavit." Similarly, defendant's counsel argues, plaintiff is not entitled to a hearing on the issues because he cannot invoke the Fifth Amendment privilege and then, in the same proceeding, subsequently "turn-coat and seek to provide testimony on that very subject matter." In support of his argument, defendant's counsel filed a memorandum of law dated June 10, 2015.
In her June 9, 2015 affidavit, defendant avers that "there was no family computer at any time" in the parties' home. She avers that she "never gave permission to anyone to utilize" her personal laptop and that it was password protected. Defendant avers that in the fall of 2014 she "saw [plaintiff] snooping around [her] laptop" and she believes he read certain "personal" emails on her computer during the marriage. She avers that as a result of the plaintiff's alleged "snooping" she began almost exclusively utilizing text messages on her iPhone instead of relying on e-mails. She argues that anyone who accessed her iPhone "would be privy to all of [her] confidential information and [*10]communications, including with [her] lawyers..."
In his June 10, 2015 reply, defendant's counsel again asserts that defendant has "absolutely no interest in [plaintiff's] private communications [emphasis in original]" and that defendant is only interested in determining "the extent to which the plaintiff illegally intercepted her private communications and other information." Defendant's counsel affirms that defendant supports "any method that will fairly sort out from the illegally obtained information (that hopefully has not been deleted) his own personal materials."
Defendant's counsel argues that plaintiff further had an opportunity to "destroy the evidence and information at issue — in violation of the May 15th Order and in further prejudicing [sic] his wife's rights" because he immediately purchased a new computer and cell phone within hours of being served with the May 15 order by the Sheriff of the City of New York. Defendant's counsel argues that plaintiff violated the May 15, 2015 order when he purchased new computing devices because "there is a likelihood that he used these devices to destroy the evidence and information at issues" in further prejudice the defendant's rights. Furthermore, defendant's counsel argues that plaintiff did not comply with the Court's May 15, 2015 order in so much as he "failed to turn-over his cell phone, which was the cell phone in effect as of his jail-breaking/mSpy using in October 2014." Defendant's counsel contends that the point was conceded by plaintiff's counsel in Court on May 20, 2015 when she represented that she was in possession of plaintiff's cell phone. Plaintiff's counsel represented on the record on May 20, 2015 that she had been in possession of a cell phone previously used by plaintiff since the parties entered into a consent stipulation regarding interim parenting time and was still in possession of said cell phone. Plaintiff's counsel proffered the alleged cell phone at the May 20, 2015 court appearance and, on consent, the Court issued a written order that the Chief Clerk of the Court hold, until further order of the Court, plaintiff's cell phone in question as provided by plaintiff's counsel.
At the May 29, 2015 court appearance the parties, on consent, entered into a stipulation, which the Court so-ordered, adjourning the pending applications to June 15, 2015 at 10:00 a.m.; set a briefing schedule for opposition and reply; and continued the Court's May 15, 2015 order, including the temporary restraining orders. The Court was unavailable due to court business on June 15, 2015 and the matter was adjourned, on consent, to June 18, 2015. The parties, on consent, subsequently adjourned the June 18, 2015 court appearance to June 23, 2015 at 2:15 p.m. to accommodate the attorney for the children's schedule.
Defendant filed a reply affidavit in support of motion sequence #4 dated June 9, 2015 in which she contends that as early as October 28, 2014 the plaintiff "slipped" and included the following statement in an affidavit dated October 28, 2014 filed with the Court: "Last week, when I told the Defendant that I wanted a divorce, and would prefer a quick negotiated settlement between lawyers, she told me that she would hire high powered counsel and was weighing all of her legal options, including an all-out litigation [*11][emphasis added by defendant]." Defendant avers that she "never, ever, ever" told plaintiff her plans regarding "what kind of lawyer" she was going to hire and alleges that plaintiff's belief that she was going to hire "high powered" counsel "can only be based upon information stolen from [her] iPhone and accessed by the Plaintiff, through his computing devices, from the spyware he purchased for the purpose of invading [her] privacy and intercepting [her] personal information and communication, including with counsel." At oral argument on June 23, 2015, defendant's counsel argued that plaintiff also used information he allegedly gleaned from the spyware he installed on defendant's iPhone to prepare a portion of a prior affidavit when arguing that the defendant spent several hours with her boy-friend while he was at the hospital after an incident on October 14, 2015. Defendant's counsel argues that plaintiff was able to allege that information "upon information and belief" because he was tracking defendant through the spyware he installed on her iPhone and the access he had to her GPS.
In her reply [to motion #5] dated June 12, 2015, plaintiff's counsel requests that "[i]f there is anything the Court can do to simply reserve everyone's rights here (especially [plaintiff's] constitutional rights) and move on, it would be most appreciated."[FN9] Plaintiff, in his affidavit dated June 12, 2015, argues that "if Defendant and/or her counsel continue to insist on litigating the custody and financial aspects of this case, [he] asks that it be speedy, transparent, and unimpeded by any further circus sideshows."
Defendant contends that plaintiff knew he was going to be served with the Court's May 15, 2015 order on May 18, 2015 because he was monitoring her communications using the spyware he allegedly installed on her iPhone. In support of her argument, defendant annexes copies of text messages from plaintiff to her from May 18, 2015. Plaintiff contends that he had advance notice that he was going to be served by the Sheriff of the City of New York because the sheriff "accidentally" called his cell phone to "check" if he would be home.
The attorney for the children, six (6) year old twins, filed an affirmation to defendant's order to show cause in support that she believes that "enough evidence has been produced by the Defendant to warrant a search of Plaintiff's computers." The attorney for the children argues that she also believes "Defendant is entitled to have the siezed [sic] electronics inspected, since Plaintiff has complained about Defendant's morals" and as such she believes "[plaintiff] has opened the door to this inquiry." The attorney for the children does not support defendant's argument that it was "reasonable under the circumstances" for plaintiff to purchase a replacement laptop and/or cell phone after his electronic devices were seized by the Sheriff of the City of New York pursuant [*12]to the Court's May 15, 2015 order "if for no other reason than to be available in case of an emergency regarding one of the children."
The attorney for the children raises an argument, in addition to the ones raised by defendant's counsel, in support of a forensic evaluation of plaintiff's electronic devices. The attorney for the children affirms that she is "very concerned about Plaintiff's use of the Virtual Private Network, IPVanish" because of certain behavior by one of the children observed by the visitation supervisor during supervised parenting sessions.
The Court heard extensive oral argument on the pending applications on June 23, 2015. Both parties, with respective counsel, and the attorney for the children were present during the June 23, 2015 court appearance.
At oral argument on June 23, 2015, defendant's counsel argued that the Court should not, as plaintiff's counsel argues, simply draw a negative inference against plaintiff and "move on" from the spyware issue without further investigation to determine the extent of plaintiff's alleged monitoring. Defendant's counsel argues that to disregard plaintiff's alleged installation of spyware on defendant's iPhone and his use of the spyware to monitor her confidential communication would extremely prejudice the defendant in the litigation because, he alleges, "there were 202 e-mails" between his firm and defendant between October 6, 2014 when defendant alleges that plaintiff jail-broke her iPhone and installed spywere and February 9, 2015 when the plaintiff's computer expert discovered that the phone was jail-broken and she stopped using it to communicate with her attorneys. Defendant's counsel contends that if plaintiff was monitoring defendant's confidential communications during that period of time — between October 6, 2014 and February 9, 2015 — that plaintiff had access to confidential communications between defendant and her attorneys and that the information plaintiff could have obtained from his use of the spyware would make it impossible for defendant to participate in the litigation on equal footing. Defendant's counsel argues that it is crucial for the Court to know the extent of plaintiff's alleged monitoring of defendant's confidential communication so that the Court can determine the extent, if any, negative inference should be held against plaintiff and how that negative inference may impact on further discovery and testimony by plaintiff.
Defendant's counsel again asserted that defendant does not want to access any of plaintiff's "personal stuff," "business stuff" or "his communications with his lawyer" and that defendant only seeks the forensic evaluator to assess plaintiff's computing devices to determine "[a]ny content relevent to usage of mSpy, any content relevant to data collected by mSpy, any content relevant to any other software or similar nature and any evidence of spoliation" as those issues relate to the weight of the negative inference that should be drawn against plaintiff.
At oral argument on June 23, 2015, plaintiff's counsel argues that there was no basis for defendant's counsel to "make an extraordinary jump from a Fifth Amendment invocation by [plaintiff]" to requesting that plaintiff's computer devices be seized. She [*13]concedes that "a negative inference flows" from plaintiff's invocation of the Fifth Amendment privilege; however, she argues that the "very limited to particular question" and not to a "whole parade of horribles [sic] that might be imagined or speculated to on the part of defendant." Plaintiff's counsel argued that the Court should resolve the motion by drawing a negative inference against plaintiff and the case should continue without further interruptions since, in essense, the issues of whether plaintiff installed spyware on defendant's iPhone and used it to monitor her confidential communications and location are, she posits, "in a sense, ... a collateral issue" that may only be "of some vague relevance to the question of custody or financials." Plaintiff's counsel does not address the issue of how the Court should determine the weight, if any, of the negative inference she contends should be drawn against plaintiff. Plaintiff's counsel further argued that plaintiff had legitimate sources for the information he used in litigating the pending proceeding. The Court inquired of plaintiff's counsel on the record on June 23, 2015 as follows:
THE COURT:Is your client prepared today under oath to state that he's not — — under oath in open court, that he has not intercepted or seen or had any opportunity to review any confidential communications between the defendant and anyone else of a privileged nature? And if you can't answer the question now, don't because you may be bound by it.
MS. BYRNE:Right. In connection with Fifth Amendment invocation — —
THE COURT:I asked you a direct question. Is he willing to testify under oath that he has received absolutely no confidential information or any privileged communication from anyone or intercepted or seen or had any knowledge from by the operation of this defendant's devices, what they may be, and if, and quite frankly, he has the right to take the Fifth Amendment — —
MS. BYRNE:Of course.
THE COURT:— — to that question, as well.
Plaintiff's counsel asserted that she did not believe that plaintiff could answer the Court's question without using his Fifth Amendment privilege as a sword and a shield and [*14]she argued that the Court could draw an adverse inference against plaintiff on the issue but, she argued, to allow defendant access to the contents of plaintiff's computing devices would only serve to give defendant "tit for tat access" to plaintiff's attorney-client communications. The Court noted on the record that since the ex parte application defendant's counsel had gone out of his way to ensure that the remedy did not include accessing any of plaintiff's privileged communications and that the Court's May 15, 2015 order was crafted specifically to ensure that there was no further dissemination of either defendant or plaintiff's confidential communications.
In response to the Court's inquiry, plaintiff's counsel argued that the Court could draw a "generalized" negative inference against plaintiff for invoking the Fifth Amendment regarding questions related to his alleged jail-break of the defendant's iPhone and subsequent installation of spyware but that the Court was barred from granting defendant's application to have an expert appointed to analyze plaintiff's computers and cell phone records relating to any confidential communications intercepted by plaintiff using the spyware on plaintiff counsel's theory that plaintiff's invocation of the Fifth Amendment extends to his "digital person" and that records stored on his computer and cell phone are extensions of his "digital person."
THE COURT:... the question now has to become, let's see what was in it, let's see what was there, he has a right to take his Fifth Amendment, but Mr. Felder has the right to see what's been compromised, if anything.
MS. BYRNES:But, your Honor, if Mr. Felder's — — well, first of all, there's an inference that can be made, and again, I can't say, no, he didn't do that without then being kind of — — I'm not saying your Honor's trying to trap me into waiving my client's Fifth Amendment privilege, but that is sword and shield. Your Honor, he has asserted the Fifth Amendment, he's permitted to assert it as to his digital person. And I don't believe that this Court is empowered to make an end-run around that...
Plaintiff's Application to Continue Deposition of Defendant
In his affidavit dated May 28, 2015, plaintiff argues that he has "sat for three sessions of a deposition" but that defendant has "sat for only one session" and then "summarily cancelled" the next scheduled deposition session. Plaintiff requests that defendant be ordered to continue her deposition.
Furthermore, plaintiff in his affidavit contends that he needs "guidance and instruction" regarding lines of questioning of defendant by his counsel which he alleges defendant's counsel "instructed his client not to answer..." Plaintiff did not include the [*15]specific questions upon which he sought a court ruling on his affidavit. Instead, plaintiff references pages of a deposition transcript with a general statement of "follow-up questions..." apparently to a line of questioning related to estate planning by defendant's family. In addition, plaintiff seeks the Court's "guidance and instruction" regarding "questions we were not given a chance to ask...which were cut off..." which would have allegedly been related to whether defendant paid "monies in connection with surveillance or investigative work."
Plaintiff's counsel's May 28, 2015 affirmation is silent as to the issue of continuing defendant's deposition.
In his affirmation dated June 10, 2015, defendant counsel argues that "[u]ntil a determination is made as to exactly what the plaintiff has learned from the break-in of [plaintiff's] cell phone and the information and communications that he obtained...it would be inequitable to allow my client's deposition to go forward when the playing ground is no longer level." He further argues that he "cannot tell what was the genesis of the questions the Defendant was asked at her deposition and they may well have come based on improperly obtained information." Defendant's counsel argues that certain questions asked of his client during the initial deposition session were "highly suspicious" and that defendant's deposition should remain suspended until the threshold question related to defendant's allegation that plaintiff had surreptitiously accessed defendant's iPhone using spyware has been assessed because, he argues, if plaintiff used information gathered from his alleged surveillance of defendant's iPhone that "[t]he playing ground is not level" and defendant would be prejudiced by continued deposition questioning. Defendant's counsel also contends that even if the Court permits plaintiff to continue deposing defendant that plaintiff's counsel should not be permitted to ask questions related to custody matters.
In her affirmation dated June 12, 2015, plaintiff's counsel argues that the deposition of defendant should continue and that she would be "happy to conduct the remainder of [defendant's] deposition in the courthouse, subject to any other protections that the Court deems necessary to keep it on track."
Defendant's Responses to Plaintiff's Interrogatories
In her May 29, 2015 order to show case plaintiff's counsel seeks an order "compelling Defendant to provide written responses to the Plaintiff's Interrogatories, which were due on March 24, 2015 and not provided..." Plaintiff's counsel argues that there are outstanding discovery demands and that "there has been a lot of back and forth about when the Defendant's Interrogatory responses would be due." She affirms that she served plaintiff's demand for interrogatories on March 4, 2015 and that answers therefore were due on March 24, 2015. She affirms that after March 24, 2015 defendant's counsel requested that she provide plaintiff's demand in a Word document so that it would be easier for him to respond. She further affirms that she "discussed" plaintiff's demand for interrogatories again during defendant's deposition and that she "followed up with an e-[*16]mail attaching the interrogatories" which she annexed to her papers. Plaintiff's counsel affirms that she has not received any response to plaintiff's demands for interrogatories as of May 28, 2015.
Defendant's counsel objects to continuing defendant's deposition based upon alleged use of information derived from spyware installed on defendant's iPhone; however, defendant's counsel did not specifically address the issue of plaintiff's request for a written response to interrogatories in his opposition papers dated June 10, 2015.
Neither party addressed the issue of interrogatories at oral argument on June 23, 2015.
Plaintiff's Request for Reallocation of Supervised Parenting Time Costs
In his May 29, 2015, plaintiff requests that the Court reallocate the cost of defendant's supervised visitation from the current payment of 80% by defendant/20% by plaintiff to make defendant solely (100%) financially responsible for the cost based upon what plaintiff characterizes as an "angry financial freeze out routine...." In his opposition, defendant's counsel alleges that plaintiff has sufficient monies "available to pay his share" of the supervised parenting costs. Neither party addressed the issue of reallocation of the cost associated with supervised parenting time at oral argument on June 23, 2015.
Plaintiff Request for Payment of Add-On Expenses
In his May 29, 2015 order to show cause, plaintiff alleges that defendant is engaging in an "angry financial freeze out routine" by not complying with the terms of what he characterizes as the parties "private" financial stipulation related to interim support.[FN10] Plaintiff filed a pendente lite order to show cause dated December 23, 2014 seeking, among other relief, an award of maintenance, child support and counsel fees. Plaintiff acknowledges in his May 28, 2015 affidavit that "the parties resolved the financial [his December 23, 2014] OSC by means of a stipulation that Defendant insisted we keep private" on or about January 29, 2015. Plaintiff contends that defendant insisted that the parties not reveal the terms of their "private" financial stipulation related to interim support unless either side breached the terms of the stipulation. Plaintiff contends that defendant breached the stipulation by failing to pay certain add-on expenses for April 2015. Plaintiff requested that the Court so-order the parties' "private" stipulation unless defendant paid the alleged add-on arrears for April 2015 at the court appearance on May 28, 2015 in which case plaintiff agreed to "withdraw this request for relief..."
In support of his request plaintiff annexed copies of an e-mail from his counsel to defendant's counsel dated May 4, 2015 requesting payment of add-on expenses; a [*17]summary sheet detailing alleged add-on expenses in the sum of $9,163.00; and copies cancelled checks issued by plaintiff. Plaintiff details the sum of $10,780.00 due for add-on expenses for the children for the month of April 2015, as follows: $285.00, occupational therapy; $600.00, speech therapy; $6,670.00, camps; $2,950.00, child psychologists; $35.00, unreimbursed medical; and childcare, $240.00 [FN11] . Plaintiff contends that, pursuant to the terms of the parties' "private agreement", defendant is financially responsible for 85% of the add-on expenses. Plaintiff did not annex a copy of the "private agreement" to his moving papers.
Defendant's counsel filed an affirmation in opposition to motion sequence #5 dated June 10, 2015. He argues that defendant has paid plaintiff the sum of $116,195.08 since January 2015 in combined support and that defendant is in full compliance with the child support and maintenance provisions of the parties "stipulation of settlement" dated January 29, 2015.[FN12] Defendant's counsel does not directly dispute plaintiff's representation that defendant is responsible for 85% of add-on expenses under the parties' "private agreement"; however, he argues that plaintiff "is not entitled to receive the babysitter' costs he seeks" in his request for add-ons. Defendant's counsel also argues that "if [plaintiff] is seeking summer camp tuition from [defendant], [plaintiff] should review the agreement because that expense was not included in the interim support stipulation." Defendant did not annex a copy of the parties' "private agreement" to his opposition.
Defendant's counsel further argues, in effect, that plaintiff's request for add-ons should be denied because he is underemployed in what defendant counsel classifies as "some non-stressing kind of work' at home..." Defendant's counsel does not address how plaintiff's employment status impacts upon the terms of the parties' "private agreement."
In her affirmation dated June 12, 2015, plaintiff's counsel argues that, while camp may not be covered by the parties' interim support stipulation, the defendant through counsel expressly agreed to the camp expenses by e-mail dated April 2, 2015 and she annexed a copy of the e-mail.
Neither party provided the Court with a copy of the "private" January 29, 2015 stipulation which purportedly resolved plaintiff's request for interim support. At this time there is no court order or so-ordered consent stipulation related to interim support in this proceeding and neither party has filed a plenary action to enforce any alleged contract [*18]between the parties related to interim support.Counsel Fee Request
In support of his counsel fee request in motion sequence #5 [affidavit dated May 28, 2015], plaintiff argues that "we have discovered that $959,000 has been paid to Mr. Felder's office (that we know of, so far)." Plaintiff argues that defendant's counsel has "withheld" production of defendant's legal bills despite document requests and notice of deposition. Plaintiff contends that a payment in the alleged sum reveals that "defendant is prepared to use her family money to destroy [him]."[FN13] Plaintiff further argues that defendant will "bring all of her family resources to bear" while he "struggle[s] to care for our children and rebuild [his] career under the unremitting pressure of demands and attach from the Felder legal machine."[FN14] In his affidavit dated June 12, 2015, plaintiff argues that the maternal grandmother "is clearly financing the effort to destroy' [him]." He requests that the Court award him $10,000.00 in connection with the "instant cross motion to remedy the Defendant's breaches and misconduct."[FN15] In addition, plaintiff seeks an "additional $350,000 in interim counsel fees to help [him] level the playing field and prepare for the continuing onslaught."
In her affirmation dated May 28, 2015, plaintiff's counsel affirms that her prior request for interim counsel fees were resolved between the parties by stipulation in the sum of $75,000.00. She also affirms that plaintiff paid her $12,000.00 at the beginning of the action and that he has paid her "several thousand dollars worth of transcript and court runner costs out of pocket." She further affirms that plaintiff owes her $15,360.00 for services billed through April 2015 and that she has billed plaintiff an additional "42 hours in connection with the three deposition sessions (two of [plaintiff] and one of [defendant])" in May 2015, "extensive preparation" during the first week of May for defendant's deposition on May 8, 2015 and the court appearance on May 20, 2015. She [*19]further affirms that she has billed "an additional 28 hours so far, and expect to spend many more in connection" in connection with responding to defendant's May 15, 2015 order to show cause "as well as the cross of ours necessitated by Defendant's malfeasance..." She argues that as a result of the billed hours in May 2015 plaintiff's "total outstanding balance due to me will be $43,360." Plaintiff's counsel alleges that it has been so "time-consuming (by design)...to go toe-to-toe with Felder & Co." that she "plan[s] to hire someone...on a full time bases, most specifically to help [her] deal with this breathtaking onslaught." She affirms that "it is with great regret and sadness" that she seeks an award of interim counsel fees in addition to what defendant voluntarily provided previously but she sees "no alternative..."
Plaintiff's counsel argues that defendant is the monied spouse because she "has considerably more resources" than plaintiff and that therefore under the rebuttable presumption in the recently amended DRL 237 plaintiff should be awarded interim counsel fees "so as to enable adequate representation..." Plaintiff counsel's affirmation does not request a specific award of counsel fees but proposes that without an award of "perhaps half" of what defendant has paid her counsel that it would be "extremely challenging in the months to come." In support of her counsel fee application she attached copies of bills from February 20, 2015 showing counsel fees due and owing in the total sum of $9,160.00 ($2,720.00 for February 20, 2015 through February 27, 2015 + $6,440.00 for March 4, 2015 through March 31, 2015). Plaintiff's counsel did not attached a copy of plaintiff's retainer agreement or plaintiff's statement of net worth to her application for counsel fees.
In his June 10, 2015 affirmation, defendant's counsel opposes plaintiff's request for $350,000.00 in interim counsel fees.He affirms that as of May 20, 2015 his firm had "actually received" $304,322.87 in legal fees for services rendered and that between May 20, 2015 and June 10, 2015 his firm has received another $123,659.15 in legal fees for services rendered for a total of $427,982.02.
Defendant's counsel affirms that his firm has not been paid more than $900,000 in counsel fees. Defendant's counsel affirmed that defendant's mother established an IOLA account with an original amount of $921,890.91 and that defendant has paid the following from that account: her counsel fees for services rendered in the sum of $427,982.02; the voluntary $75,000.00 counsel fee check to plaintiff's counsel; approximately $91,195.08 for combined support; the court-appointed real estate appraiser; the court reporter for depositions; minutes of court proceedings in this action; the court-appointed forensic evaluator; and defendant's "monthly rent...and her other private expenses..."
Defendant's counsel argues that plaintiff has unnecessarily incurred counsel fees because he did not comply with that portion of the court order appointing the forensic evaluator in that he allegedly provided documentation to the forensic evaluator without provided a copy to defendant's counsel. Defendant's counsel argues that had the forensic evaluator not provided courtesy copies of the documents provided by plaintiff that [*20]defendant's counsel may never have become aware of plaintiff's submission.
Plaintiff, in his affidavit dated June 12, 2015, avers that the only document he provided directly to the forensic evaluator was "a thoughtful memo on the issues of custody and how to balance the safety and development of the children with the desirability of them spending time with their mother."
Plaintiff's counsel, in her affirmation dated June 12, 2015, "categorically" denied defendant counsel's implication that she "hid from him any documents she provided to the forensic evaluator. She affirms that once she learned that the forensic evaluator requested documents from her client she "sent a specific response" to him that "for ease of disclosure and to make sure [she] fulfil [her] obligations" that any requests for documents be made directly to counsel.
Defendant's counsel further argues that because plaintiff receives $13,750.00 monthly in support that he "can contribute money towards his own counsel fees" given that "a great deal of effort was expended because of [plaintiff] and his behavior..." He further argues that plaintiff is "not candid with the Court about monies he had available to pay his share of the expenses." Furthermore, he argues, plaintiff has an IRA account "with approximately $178,536" as well as "access to money" from "a former girl-friend..." As such, defendant's counsel argues, plaintiff has sufficient financial resources from which to contribute to his counsel fees. Defendant's counsel argues that "if any party has had to spend considerable legal fees it is [defendant] for having to fight to see her children; for having to prove all of [defendant's] falsities and uncover his omissions, etc., magnified by the considerable fees incurred by [plaintiff] because of [defendant's] illegal spyware." Defendant's counsel requests that if the Court awards interim counsel fees to plaintiff that the "award should be modest in nature" with leave to apply for additional counsel fees "at the end of the case."
Defendant's counsel also argues that plaintiff's order to show cause could have been avoided entirely had she "simply called" his firm. Plaintiff's counsel argues that despite defendant counsel's representation that counsel fees could have been avoided by a telephone call that she has repeatedly requested "their legal bills, in the context of document discovery, as well as during deposition" and that they have not been provided. She further argues that "it is all the more strange that the add on payments have not yet arrived, in they are presumable within counsel's control and are required under the parties' signed stipulation." She then provides, under heading of [UPDATE] that defendant's counsel, by way of messenger at 11:00 a.m. on June 12, 2015, provided a check for $7,568.39. Plaintiff's counsel notes that her June 12, 2015 affirmation was due for service by noon pursuant to the briefing schedule.[FN16]
At oral argument on June 23, 2015, defendant's counsel argued that his firm "got $309,000, and subsequently, ... got...another $100,000 here and there, some extra [*21]money..." Defendant's counsel argues that plaintiff's contention that defendant has been paid approximately $950,000.00 is "a tempest in the teapot..."
At oral argument on June 23, 2015, plaintiff's counsel argued that "since we don't have the legal bills, we don't know for certain, but we know we have sworn testimony that this extraordinary amount of money has been paid in this case."
Plaintiff's Fifth Amendment Argument: "Digital Person" Article 1 §6 of the New York State Constitution states that, "No person...shall...be
compelled in any criminal case to be a witness against himself or herself..." This language is substantially identical to that of the Fifth Amendment of the United States Constitution, "No person...shall be compelled in any criminal case to be a witness against himself" (US Const amend. V, full text). A party to a civil suit may also take advantage of the Fifth Amendment, "...since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution" (Lefkowitz v Cunningham, 431 US 801, 805 ; however in the context of a civil action, a witness' Fifth Amendment privilege is more constrained:
Unlike his counterpart in a criminal prosecution, the defendant in a civil suit has no inherent right to remain silent or, once on the stand, to answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a witness, respond to virtually all questions aimed at eliciting information he may possess relevant to the issues, even though his testimony on such matters might further the plaintiff's case. (McDermott v Manhattan Eye, Ear and Throat Hosp., 15 NY2d 20, 28 .)
Furthermore, a party who invokes the Fifth Amendment privilege in a civil action may be subject to an adverse inference:
In New York, unlike the rule in a criminal case, a party's invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert (citation omitted) (Kuriansky v Bed-Stuy Health Care Corp., 135 AD2d 160, 178-79 [2d Dept 1988] affd, 73 NY2d 875 ).
It is well-established that when a witness invokes the Fifth Amendment in a civil action the Court may draw an adverse inference against that party (see El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept.,2013] (holding that in a matrimonial action the Supreme Court was correct to draw an adverse inference against the defendant in a contempt hearing where the defendant invoked his Fifth Amendment privilege).
The New York Court of Appeals has held that drawing the adverse inference [*22]against a party based on invocation of the Fifth Amendment privilege is "...akin to that arising when a party fails or refuses to produce a material witness who is within his control..." (Marine Midland Bank v John E. Russo Produce Co., Inc., 50 NY2d 31, 42, 427 NYS2d 961 ).
The information and allegations before the Court in the instant application is as follows: plaintiff's bank records, which defendant obtained through subpoena, reveal purchases of spyware on October 2, 2014 [FN17] ; defendant's expert indicates that defendant's iPhone was jail broken at approximately 1:32 a.m. on October 6, 2014 and that spyware (consistent with the spyware purchases made by plaintiff on October 2, 2014) was installed on defendant's iPhone approximate fourteen (14) minutes later at 1:46 a.m.; defendant avers that only she, the plaintiff and the parties' two (2) young children were in the marital residence on the night of October 6, 2014 and that she did not jail break her iPhone. Add to this plaintiff's invocation of his Fifth Amendment privilege against self-incrimination when asked directly about the alleged acts during his deposition and the evidence is fairly compelling. Plaintiff continues to assert his Fifth Amendment privilege and has not waived it. Defendant contends that the only evidence missing — the proverbial "smoking gun" — would be that an inventory of plaintiff's computing devices reveals that he used the spyware to access defendant's privileged communications. Plaintiff surrendered numerous computing devices to the Sheriff of the City of New York on May 19, 2015 in compliance with this Court's ex parte May 15, 2015 order. Based upon the facts and circumstances before the Court it is appropriate to find an adverse inference against the plaintiff related to the allegations that he installed spyware on the defendant's iPhone and used that spyware to monitor defendant's communications and location.
The question before the Court is now whether plaintiff attempting to gain an advantage in this litigation installed spyware on defendant's iPhone and used it to intercept defendant's confidential and/or privileged communications, including but not limited to defendant's communications with her attorney and whether, if plaintiff did so, that interception has prejudiced defendant's ability to participate in this litigation on an equal playing field and if so what remedy is appropriate.
Defendant's Confidential and/or Privileged Communications
CPLR 4503 (a) states that a privilege exists for confidential communications made between attorney and client in the course of professional employment and CPLR 3101 (b) vests privileged matter with absolute immunity. There is a strong public policy surrounding the privilege of attorney-client communications. The New York Court of Appeals has stated that attorney-client privilege is the oldest among common-law evidentiary privileges and is intended to foster the open dialogue between lawyer and [*23]client that is deemed essential to effective representation (see Spectrum Systems Intern. Corp. v. Chemical Bank, 78 NY2d 371, 575 NYS2d 809 ).
The Supreme Court of the United States has held that the attorney-client privilege protects confidential communications whether made by client to attorney and by attorney to client (Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682 ). A fundamental requirement of the attorney-client privilege is a showing that the client intended the communication with counsel to be confidential (see People v. Harris, 57 NY2d 335, 343, 456 NYS2d 694 ). The privilege "depends on whether the client had a reasonable expectation of confidentiality under the circumstances" (People v. Osorio, 75 NY2d 80, 84, 550 NYS2d 612 ). As long as there was a reasonable expectation of confidentiality e-mail communications between client and attorney are, like any other communication between client and attorney, protected by the attorney-client privilege (see Willis v. Willis, 79 AD3d 1029, 914 NYS2d 243 [2 Dept.,2010]; see also Parnes v. Parnes, 80 AD3d 948, 915 NYS2d 345 [3 Dept.,2011]).
Here, defendant's counsel contends that he and defendant exchanged more than two-hundred (200) e-mails protected by the attorney-client privilege between October 6, 2014, when plaintiff allegedly installed spyware to monitor defendant's communications through her iPhone, and February 6, 2015, when defendant hired a computer expert who discovered the spyware on her iPhone. Defendant's counsel argues that any surrepticious interception of defendant's privileged communications would not result in a waiver of the privilege. Furthermore, defendant's counsel contends that if plaintiff used the spyware he allegedly installed on defendant's iPhone between October 6, 2014 and February 6, 2015 to intercept defendant's attorney-client privileged communications that, depending on the extent of his interception, plaintiff may have prejudiced defendant's ability to participate in this litigation on a level playing field. Defendant's counsel argues, in effect, that given plaintiff's invocation of the Fifth Amendment regarding any and all questions surrounding the purchases of spyware and whether he used it to intercept defendant's privileged communications, the only way to ascertain whether plaintiff actually violated defendant's attorney-client privilege is to review the documents and data records on plaintiff's computing devices. If defendant's privileged communications are found on plaintiff's computing devices, defendant's counsel argues, and spyware was used to intercept those communications, then plaintiff has violated defendant's attorney-client privilege and any remedy defendant will seek will depend on the extent of the violation.
Here, consistent with the Appellate Division, Second Department decision in Willis v. Willis, it appears that defendant had a reasonable expectation of confidentiality when communicating with her attorney on her personal iPhone, which she averred in papers no one else used or had permission to access (supra). Assuming, arguendo, that plaintiff surreptitiously intercepted defendant's privileged communications, including attorney-client communication, using illegitimate means (spyware) he installed on her iPhone without her knowledge or consent then plaintiff obtained those confidential and/or [*24]privileged communications surreptitiously and without defendant waiving her attorney-client privilege. Defendant's counsel correctly asserts that defendant must be permitted the opportunity to examine whether or not plaintiff violated the attorney-client privilege attached to e-mails defendant exchanged with her counsel and, if he did so, whether the extent of the violation prejudiced defendant's ability to participate in this litigation on a level playing field.
Plaintiff's counsel argues that defendant's relief should be limited to the Court drawing something of a "general" adverse inference against him on the issue which, plaintiff argues, is essentially not important to the best interests of the children and, therefore, she contends, not particularly important in this litigation. If the Court were to adopt plaintiff's theory it would then allow parties to shield documents from discovery by claiming the Fifth Amendment privilege. Furthermore, there is a public policy issue that cannot be ignored: parties and their attorneys must continue, even in this digital era, to be able to communicate without fear of interception. To simply allow an adverse inference and permit no further inquiry invites opposing parties into the other attorneys law office through digital means. Contrary to plaintiff's position, it is imperative that defendant know the extent, if any, to which her attorney-client communications were intercepted by plaintiff so that she can seek the appropriate remedy whether it be an application for sanctions, an application to limit plaintiff's future discovery, an application to preclude the defendant from introducing at trial any evidence or testimony for which he cannot establish a legitimate source unrelated to any confidential communications he obtained by illegitimate means and/or any other remedy that may be appropriate once the facts and circumstances are known.
If, indeed, plaintiff installed spyware on defendant's iPhone and used it to intercept defendant's privileged communications to obtain an advantage in these proceedings by allowing him to obtain information that would be unavailable to him through normal methods of pre-trial discovery then the remedy available to defendant must flow from plaintiff's actions. The Court notes that when faced with a similar fact pattern the trial court in Berliner v. Berliner noted that the remedies that may be available in other types of civil litigation are not always appropriate in matrimonial actions where remedies must be balanced against strong public policy issues where children are involved.[FN18] In Berliner the trial court found that the appropriate sanction was to preclude the offending party from introducing at trial any documentary evidence for which he could not establish a [*25]legitimate source.[FN19] In the case before this Court, it appears from the facts presented at this time that the alleged breach of defendant's privacy, if plaintiff in fact used the alleged spyware to intercept her privileged communications to the extent claimed by defendant, would be a far greater violation that what was alleged in Berliner. In Berliner only certain files were removed from the wife's computer on one occasion whereas in the case before this Court, if defendant's allegations are substantiated by the inventory of plaintiff's computing devices, the sophistication of the spyware allegedly used by plaintiff enabled him to monitor systematically all of defendant's online activity in real-time for many months. Clearly, given the allegations and facts presented by defendant and plaintiff's continued assertion of his Fifth Amendment privilege the only method available is to inventory the documents on the computing devices. Plaintiff is reminded and cautioned that the restraining orders in this Court's May 15, 2015 order remain in full force and effect.
Fifth Amendment: Document Discovery
Plaintiff argues that since he invoked the Fifth Amendment regarding his alleged purchase of spyware and the related allegations of interception that defendant must not be permitted to pursue document discovery related to those issues.
When a party invokes his or her Fifth Amendment privilege related to an issue before the Court the invocation does not necessarily prohibit the other party from pursuing the information sought using other available methods of discovery which do not involve the testimony of the witness who invoked the Fifth Amendment privilege. "While a party may not be compelled to answer questions that might adversely affect his criminal interest, the privilege does not relieve the party of the usual evidentiary burden attendant upon a civil proceeding..." (Access Capital, Inc. v. DeCicco, 302 AD2d 48, 752 NYS2d 658 [1 Dept.,2002]). This is consistent with the Appellate Division, Second Department's decision in In re Astor, 62 AD3d 867, 869 [2d Dept 2009]. In In re Astor, the movant in a probate proceeding sought a protective order arguing that if the Court compelled production of certain documents during discovery it would violate his Fifth Amendment privilege against self-incrimination. In denying the movant's application for a protective order the Appellate Division, Second Department explained that,Here, although some of the subject demands are for documents that could be [*26]incriminating in connection with the relevant counts in the criminal indictment against the appellant, "that the witness may invoke the privilege against self-incrimination is not [necessarily] a basis for precluding civil discovery" (State of New York v. Carey Resources, 97 AD2d at 509, 467 N.Y.S.2d 876).
The Appellate Division, Second Department further held in In re Astor, 62 AD3d 867, 870 [2d Dept 2009], that ...the appellant must show that the very act of producing the documents, if compelled by the court, would have testimonial aspects and an incriminating effect' (United States v. Doe, 465 U.S. at 612, 104 S. Ct. 1237; see Fisher v. United States, 425 U.S. at 410—411, 96 S.Ct. 1569). The act of production of documents may be testimonial in that it establishes the existence, authenticity, and custody of items that are produced' (United States v. Hubbell, 530 U.S. 27, 40—41, 120 S. Ct. 2037, 147 L.Ed.2d 24).
In the case before this Court, plaintiff invoked his Fifth Amendment privilege and refused to answer questions posed by defendant during his deposition related to purchases of spyware reflected on his banking records and whether he used spyware to monitor the defendant's confidential communications, including those between defendant and her attorney. Now, plaintiff argues that defendant should be prohibited from pursuing any other means of discovery relating to those issues to which he asserted his Fifth Amendment privilege during his deposition. Plaintiff argues that any documents on his computing devices are his "digital person" and covered by his invocation of the Fifth Amendment privilege. Plaintiff cites no legal authority in support of his presented interpretation of "digital person." Plaintiff contends, in effect, that the Court can draw an adverse inference against him as to those issues but that defendant may not pursue any further discovery, including any discovery that does not involve his testimony, related to the issues surrounding whether he intercepted her confidential communications. Plaintiff argues essentially that by asserting the Fifth Amendment during his deposition he can terminate defendant's right to any further inquiry into the issue.
The Fifth Amendment privilege cannot be used as a shield and a sword. Plaintiff cannot invoke the privilege and refuse to answer questions regarding the alleged jail-break and installation of spyware then subsequently seek to "explain" his sources of information regarding the very issue to which he invoked the privilege. Here, in effect, the plaintiff seeks to suggest alleged sources from which he did, or could have, learned information that would not have involved him jail-breaking and then installing spyware on defendant's iPhone while still asserting his Fifth Amendment privilege in not answering the numerous questions put to him by defendant's counsel during the deposition relating to jail-breaking, purchases of spyware and related questions. In doing so, plaintiff attempts to control the flow of information by providing only that information which he wants defendant to know while refusing to answer specific questions put to him [*27]during the deposition that he does not want to answer.
Having invoked his Fifth Amendment privilege in refusing to answer questions on a transaction or related transactions, plaintiff cannot subsequently pick and choose what statements he will make concerning the same transaction to explain it in his affidavit.
Plaintiff offered no legal basis, and this Court is not aware of any, that would substantiate his legal theory that by invoking of his Fifth Amendment privilege plaintiff effectively bars defendant from pursuing the discovery she seeks through other discovery methods that do not involve plaintiff's testimony. Furthermore, the Court is not aware of any legal basis to deem documents stored on plaintiff's computing devices to be part of his so-called "digital person."[FN20] To the contrary, the United States Supreme Court has ruled that the Fifth Amendment privilege only extends to "the person asserting the privilege" and, further, "only from compelled self-incrimination." (United States v Doe, 465 US 605, 610, 104 S Ct 1237, 1241, 79 L Ed 2d 552 , citing 425 U.S., at 396, 96 S.Ct., at 1573.) Furthermore, in United States v Doe the United States Supreme Court detailed that there is no compulsion present where production of documents, which were voluntarily created, is sought from a person asserting the Fifth Amendment privilege in that the mere act of production does not compel the person to "restate, repeat, or affirm the truth of the contents of the documents sought" (id at 610-11). Plaintiff's argument that defendant is barred from any further discovery related to those issues on which he has invoked his Fifth Amendment privilege is unavailing. Plaintiff's assertion of his Fifth Amendment privilege does not bar defendant from pursuing the document discovery she seeks by an examination of the computing devises which is tantamount to document discovery. Plaintiff's Fifth Amendment privilege against compelled self-incrimination is not violated by the document discovery sought by defendant.
Defendant argues that she simply seeks discovery regarding whether plaintiff intercepted her confidential and privileged communications and, if so, the extent to which he did so. Defendant's counsel has steadfastly maintained that defendant solely seeks to ascertain what, if any, of her confidential and/or privileged communications plaintiff intercepted and that she does not seek to obtain any discovery related to plaintiff's communications from examination of plaintiff's computing devices. Defendant argues [*28]that the computing devices should be produced so that her computer expert can clone the hard-drives or, in the alternative, that a computer expert clone the hard-drives in the courthouse. Plaintiff objects based upon his above-detailed Fifth Amendment argument which this Court does not adopt.
When it is alleged that a party may have utilized spyware to intercept and monitor the confidential communications between counsel and another party the integrity of the process is potentially compromised.
Having determined, based upon the facts and circumstances enunciated herein, that defendant is entitled to seek document discovery through plaintiff's computing devices of what, if any, of her confidential communications were intercepted by plaintiff using spyware this Court is presented with the serious consideration of how defendant may pursue the document discovery she seeks while simultaneously safe-guarding plaintiff's confidential and/or privileged communications that may be on those computing devices.
Appointment of Referee
Defendant's counsel has maintained throughout this motion practice that he and his client do not seek to obtain any of plaintiff's documents by way of an inventory of plaintiff's computing devices. The Court notes that the record clearly reflects that defendant's counsel has repeatedly sought to protect any privileges communication between the plaintiff and his attorney from being violated during the motion practice associated with motions #4 and #5 that are addressed here. Defendants attorney consents to the appointment of a neutral private referee to inventory the subject computing devices. The plaintiff has not consented to the appointment of a neutral private referee.
The appointment of a private attorney referee may have logistical advantages given the technical nature of the task presented and the gravity of the privileged communications at issues, particularly given the current demands on judicial resources, including upon the calendars of court attorney referees; however, this Court is prohibited by statute and existing case law from appointing a private attorney referee, sua sponte, absent consent of the parties (Ploski v Riverwood Owners Corp., 225 AD2d 24 [2d Dept.,1999]). In Ploski, the Appellate Division Second Department was presented with the issue of whether, "... the Supreme Court can appoint a private attorney to act as a discovery Referee pursuant to CPLR §3104(a), and impose the costs of such reference on one or more of the parties without their approval." (Ploski at 25). The court in Ploski notes that in 1982
Chief Judge Cooke appointed a committee to study ways to utilize the services of retired Judges to reduce court backlog. The committee, chaired by former New York City Mayor John V. Lindsay (hereinafter the Lindsay Committee), issued its report in October 1982. That report strongly criticized what the committee called a "pay-as-you-go process" in using Referees in civil cases (Report of Comm. to Utilize Services of Retired Judges, at 7) and recommended using retired Judges in their place at public expense. (Ploski v Riverwood Owners Corp., 255 AD2d 24, 26 [2d Dept 1999]).
Considering the changes following the Lindsay Committee the court in Ploski explained,
In its first incarnation, CPLR 3104 (a) provided that the court could appoint a Referee on its own motion or on the motion of a party or witness while CPLR 3104 (b) stated that a Referee could be selected by stipulation of the parties. The amended version changed this design by rewording the caption of subdivision (b) from "Referee selected by stipulation" to "Selection of referee", indicating a change from a subdivision dealing with only one method of selecting a Referee to one dealing with all methods of selection. That such a change may have been intended is underscored by the rewording of the text of subdivision (b) which was amended to provide that a Judicial Hearing Officer could be "designated" as a Referee or the court might permit all parties to stipulate that a named attorney act as a Referee. Thus, the amended version requires court action either for designation of a Referee by the court or for approval of a stipulation by the parties. The plain wording of the amended subdivision (b), which restricts the use of named attorneys as Referees only to situations in which the parties stipulate, is consistent with the report of the Lindsay Committee, which disapproved of the use of privately compensated Referees in favor of State-compensated Judicial Hearing Officers. (Ploski v Riverwood Owners Corp., 255 AD2d 24, 27 [2d Dept 1999])
The Court is prepared to appoint a private attorney referee who possesses the requisite legal and technological knowledge to oversee this discovery dispute while protecting against any further dissemination of defendant's or plaintiff's confidential communications if the parties stipulate to do so on consent. In the event of such stipulation, the Court is prepared to appoint the Honorable Ariel Belen, a former Justice of the Appellate Division, Second Department to serve as a Referee if the parties consent. Given current demand for judicial resources a consent to appoint this neutral private attorney referee would allow for a more expeditious in camera inspection of the computing devices under his supervision and a resolution of this issue so that the case can progress. If the parties reach a consent for the Court to appoint a neutral private attorney referee and so stipulate they shall forward an executed stipulation to the Court within twenty-one (21) days of the date of this decision. The parties shall also stipulate, if there is a consent, to the appropriate or necessary neutral computer expert to assist the referee with the examination of the computing devices. If there is no consent on a neutral expert between the parties then each party shall submit the names and curriculum vitae of three (3) computer experts for this Court to consider in making an appointment of a neutral computer expert pursuant to 22 NYCRR 202.18.
If the parties are unable to reach a consent on a neutral private attorney referee the Court will appoint a court attorney referee. The Appellate Division, Second Department has held that it is within the trial court's authority and not an improvident exercise of discretion for the trial court to refer an issue to a court attorney referee to "hear and report" even where there is no consent of the parties (see Llorente v City of New York, 60 AD3d 1003, 1003-04 [2d Dept 2009]; Warycha v County of Westchester, 273 AD2d 434 [2d Dept 2000]; Polski v Riverwood Owners Corp., 255 AD2d 24 [2d Dept 1999]; Carpenter Environmental Associates v Horn 239 AD2d 379 [2d Dept 1997]; Csanko v County of Westchester, 273 A.D.2d 434 [2d Dept 2000]; Cf. Rosner v Rosner 73 AD3d 1152 [2d Dept 2010] the Court may appoint a Court Referee without the consent of the parties (Llorente v City of New York, 60 AD3d 1003, 1003-04 [2d Dept 2009]; see CPLR § 3104 ). Accordingly under CPLR § 3104 the court, "[u]pon the motion of any party or witness on [*29]notice to all parties or on its own initiative without notice, the court in which an action is pending may by one of its judges or a referee supervise all or part of any disclosure procedure." CPLR § 4311 provides that "[a]n order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing."
Referees who are empowered by the trial court to hear and report shall, "...have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure proceedings as will expedite the disposition of the issues." (CPLR § 4201).
If the parties are unable to reach a consent on a neutral private attorney referee this Court will, pursuant to CPLR §3104 and in compliance with CPLR §4312, by separate order sua sponte refer this matter to a court attorney referee to supervise discovery on the spyware issue. Once appointed, the referee shall supervise the hard-drive cloning of the computing devices surrendered by plaintiff to the Sheriff of the City of New York pursuant to this Court's May 15, 2015 order. After the cloning is complete the computing devices shall be returned to plaintiff. The referee who is appointed, whether it be a neutral private attorney referee on consent or a court referee appointed by the Court, shall conduct an in camera review of the contents of the cloned hard-drives and shall prepare a report on the following issues: 1) whether plaintiff used spyware from these devices and, if he did so, whether he intercepted defendant's confidential and/or privileged communications, pursuant to CPLR 4503, using said spyware; and 2) if plaintiff intercepted defendant's confidential communications using spyware whether he disseminated that content or knowledge to any third-party and, if so, to whom. In the event the referee's in camera review reveals that plaintiff intercepted defendant's confidential communications the referee shall include a detailed inventory of the topics of said communications in the report but shall not further reveal of disseminate the content to either party. To ensure that plaintiff's privileged communications are not compromised, the referee's report shall not include any reference or details regarding plaintiff's confidential communications, if any, present on the hard-drives unless plaintiff disseminated defendant's confidential and/or privileged communications to his own attorney.[FN21]
Given the technical expertise that may be required to clone the hard-drives of the computing devices and to open and examine the origins of the files, if any, contained therein, the parties may stipulate to a neutral computer expert to assist the referee with the technical task of cloning the hard-drives and accessing the files. In the event the parties are unable to agree and stipulate to a neutral computer expert the parties may each hire their own computer expert pursuant to 22 NYCRR 202.16(g)(2).
Plaintiff's counsel seeks various relief related to conducting the parties' depositions and, [*30]specifically, seeks a ruling of the Court relating to objections raised by defendant's counsel during plaintiff's deposition of defendant. Rather than detail specific questions upon which she seeks a ruling of the Court, plaintiff's counsel asks the Court's "guidance" regarding whether or not defendant must answer all questions posed by plaintiff, including "questions we were not given a chance to ask...which were cut off..."
It would be improper for this Court, prospectively, to rule that defendant must answer all questions that plaintiff may pose during a future deposition without knowing what those questions may be. The Court notes that plaintiff's counsel does detail in her papers what the proposed line of questioning will be rather she asks for "guidance" as to nebulous "questions" she was "not given a chance to ask..." Plaintiff's counsel did not address this issue at oral argument.
While the scope of examination on deposition may be broader than what may be admissible on trial (see generally Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ), in general the proper procedure is to permit the witness to answer all questions subject to objections unless a protective order is sought pursuant to CPLR 3103.
Uniform Rule 221.2 addresses the limited context in which a deponent may refuse to answer a question posed at a deposition when an objection is made. 22 NYCRR 221.2 provides that "[a] deponent shall answer all questions at a deposition, except (I) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person." Attorneys may not instruct a deponent not to answer unless CPLR 3115 or 22 NYCRR 221.2 provides a basis for doing so. When a deponent refuses to answer a question, or an attorney instructs a deponent not to answer, such refusal or instruction "shall be accompanied by a succinct and clear statement of the basis therefor." 22 NYCRR 221.2. Also, where a deponent does not answer a question, the deposition proceeds, and "the examining party shall have the right to complete the remainder of the deposition." 22 NYCRR 221.2.
CPLR 3115(b), (c), and (d) provide certain limited bases for making objections during depositions including errors which might be obviated if known promptly, disqualification of the person taking the deposition, and competency of witnesses or admissibility of testimony. See CPLR 3115(b)-(d). Despite its inclusion in Uniform Rule 221.2, CPLR 3115 does not provide any separate basis for refusing to answer questions or for an attorney to direct a deponent to not answer questions. See CPLR 3115; 22 NYCRR 221.2. Furthermore, Uniform Rule 221.1(a) provides that objections made at a deposition "shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR." 22 NYCRR 221.1(a) [emphasis added]. The parties are directed to comply with the uniform rules for the conduct of depositions in 22 NYCRR 221.
The "Private" Stipulation/Add-ons
In their cross arguments regarding whether certain add-on expenses are due and owed respective counsel for plaintiff and defendant extensively reference and rely on a purported "private" stipulation which they alleged the parties entered into on January 29, 2015 resolving [*31]issues of interim support.[FN22] Plaintiff claims certain add-on expenses are owed under the January 29, 2015 "private" stipulation. Defendant argues that the add-on expenses claimed by plaintiff are not provided for under the January 29, 2015 "private" agreement. Neither plaintiff nor defendant annex a copy of this "private" January 29, 2015 stipulation to their papers. The one position the parties appear to share regarding this "private" stipulation is the misplaced opinion that the Court can enforce this "private" stipulation between the parties without presenting the Court with the stipulation. In effect, both parties ask the Court to adjudicate the enforcability of a "private" stipulation while refusing to reveal the terms of the stipulation to the Court. The Court notes that the record reveals that the Court has not so-order a pendente lite support stipulation between the parties. If either party believes that there is, in fact, an enforceable contract between the parties albeit one not so-ordered by the Court, then the appropriate remedy for enforcement would be a plenary action on the contract. The Court also notes that even if the Court were to deem plaintiff's application to "compel Defendant to pay her agreed upon share of add ons" to be an application for pendente lite support that plaintiff did not annex a copy of his statement of net worth to motion sequence #5. As there is no Court order related to interim support at this time plaintiff's application seeking to "compel Defendant to pay her agreed upon share of add ons for the month of April, as required by the parties' Stipulation resolving Motion Sequence #2..." is denied without prejudice. The Court notes that plaintiff concedes that defendant made a payment toward his claimed add-on expenses on June 12, 2015.
Plaintiff's Demand for Outstanding Discovery
Given the nature of the allegations and the issues before the Court related to the alleged interception of defendant's confidential communications by defendant the plaintiff's application to compel defendant to respond to interrogatories is denied pending the report of the referee. The extent of confidential information, if any, plaintiff may have intercepted must be ascertained before defendant should be compelled to provide any additional discovery.
Plaintiff's Counsel Fee Application
Plaintiff seeks an award of interim counsel fees. Defendant opposes plaintiff's request for interim counsel fees arguing that plaintiff has incurred unnecessary counsel fees due to his allegedly illegal actions in jail breaking defendant's iPhone and installing spyware; that plaintiff has financial resources from which to contribute to his counsel fees; and that defendant previously provided plaintiff with $75,000.00 in counsel fees to resolve a pending pendente lite application.
In the case at bar, plaintiff argues extensively in his papers that defendant is attempting to use "family resources", which he alleges are vast, to wear him down financially in this matrimonial litigation. Defendant's counsel affirms that his firm has been paid $427,982.02 in counsel fees incurred in this matrimonial action as of his affirmation dated June 10, 2015.
Plaintiff attached bills for counsel fees incurred between February 20, 2015 and March 31, 2015 to his order to show but failed to attach a Statement of Net Worth and retainer [*32]agreement in accordance with the requirements of DRL § 237(a) and 22 NYCRR § 202.16(k)(2) and (3). It is well-established in the Appellate Division, Second Department that failure to annex an updated Statement of Net Worth to an application for interim counsel fees renders the application defective (see Garcia v Garcia, 104 AD3d 806, 961 NYS2d 517 [2 Dept. 2013]; see also Bertone v Bertone, 790 N.Y.S.2d 35, 15 AD3d 326 [2 Dept. 2005]. The Appellate Division, Second Department held in Prichep v. Prichep, 52 AD3d 61, 65-66, 858 NYS2d 667 [2 Dept.,2008], as relevant here, that:
In light of the important public policy underlying Domestic Relations Law § 237(a), as acknowledged in Frankel, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties (see DelDuca v. DelDuca, 304 AD2d 610, 611, 758 N.Y.S.2d 145; Celauro v. Celauro, 257 AD2d 588, 589, 684 N.Y.S.2d 279; Lieberman v. Lieberman, 187 AD2d 567, 590 N.Y.S.2d 135; Flach v. Flach, 114 AD2d 929, 495 N.Y.S.2d 202). Accordingly, courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause—for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case—articulated by the court in a written decision.
Here, plaintiff argues that the parties have a great disparity in income and that he is the less-monied spouse; however, defendant argues that plaintiff is gainfully employed and has not been forthcoming with his true financial situation. Plaintiff, who does not dispute that he is employed, made no representation in his papers regarding his income, and plaintiff did not attach a Statement of Net Worth. While Prichep clearly established that a detailed inquiry is not required before the Court can award pendente lite counsel fees the requirements of 22 NYCRR § 202.16(k), which includes "Motions for...Counsel Fees Pendente Lite" specifically provide that "no motion shall be heard unless the moving papers include a statement of net worth in the official form..." 22 NYCRR § 202.16(k) is intended to provide the Court with the necessary financial information to assess the financial circumstances of the parties pendente lite without the detailed inquiry involved in a final award of counsel fees. Plaintiff's procedurally defective application seeking interim counsel fees, is denied without prejudice to future application in compliance with DRL § 237(a) and 22 NYCRR § 202.16(k).
E N T E R:
Jeffrey S. Sunshine
J. S. C. Footnotes
Footnote 1:The application was originally captioned "Emergency Order to Show Cause" but the word "emergency" was crossed out prior to the order to show cause being filed with the matrimonial clerk's office.
Footnote 2:In his June 10, 2015 affirmation, defendant's counsel contends that plaintiff installed spyware prior to the October 6, 2014 date but that the spyware had to be reinstalled after each routine software update from Apple because the software updates are designed to erase any spyware on the iPhone at the time of the update.
Footnote 3:Prior to the emergency filing this matter had been scheduled for a court appearance on Tuesday, May 19, 2015. The Court administratively adjourned that court appearance to Wednesday 20, 2015 at 9:30 A.M. to provide plaintiff with an opportunity to confer with counsel prior to the return date of the application given that service was to be made on Monday, May 18, 2015 in the afternoon.
Footnote 4:The inventory of computing devices surrendered by plaintiff to the Sheriff of the City of New York includes an iPhone 6; an iPad; 1 HP notebook computer; 5 Dell computers; 2 IBM Thinkpads; 1 ASUS notebook computer; 1 Dell PC tower computer; powercords and one laptop messenger bag.
Footnote 5:The Court noted that the parties while represented by counsel and the children represented by appointed counsel had previously entered into a scrupulously negotiated interim custody and access agreement, dated February 13, 2015, and that the custody trial was ongoing. In fact, the Court had heard testimony in the pendente lite custody hearing on and was scheduled to continue the trial. Testimony in the custody proceeding was adjourned on consent pending the report of the court-appointed neutral forensic evaluator. Defendant's affidavit dated June 9, 2015 is not detailed herein inasmuch as it solely addressed opposition to those portions of motion sequence #5 seeking changes to custody and access. The Court notes that the parties subsequently amended their interim custody and parenting time stipulation dated February 13, 2015 by entering into an oral stipulation placed on the record in open court on July 23, 2015 which, among other amendments, expanded defendant's parenting time with the parties' children.
Footnote 6:Defendant's counsel affirms that plaintiff's deposition began on April 30, 2015 and continued on May 5, 2015; May 7, 2015; and May 8, 2015.
Footnote 7:The record reveals that the alleged purchases of spyware were made through a company doing business as "Avangate".
Footnote 8:This reply only addresses the issue of defendant's requested relief in the May 15, 2015 order to show cause. It does not address any of the relief requested in plaintiff's order to show cause dated May 29, 2015.
Footnote 9:The Court notes that the issue of plaintiff's Fifth Amendment assertion is not before the Court as part of motion sequence #5 and therefore it is procedurally improper for plaintiff's counsel to attempt, in effect, a sur-reply to defendant's motion sequence #4 by way of her reply to motion sequence #5.
Footnote 10:Plaintiff filed a pendente lite order to show cause dated December 23, 2014 seeking, among other relief, an award of maintenance, child support and counsel fees. Plaintiff acknowledges in his May 28, 2015 affidavit that "the parties resolved the financial [his December 23, 2014] OSC by means of a stipulation that Defendant insisted we keep private."
Footnote 11:Plaintiff lists a total childcare cost of $1,600.00 with a note "15% work or looking for" and then lists the expense as $240.00 in the calculation.
Footnote 12:The Court notes that defendant counsel's use of the term "stipulation of settlement" does not appear to be an accurate classification inasmuch as the parties merely entered into a stipulation resolving interim support and have not fully resolved the issues of child support and any final maintenance.
Footnote 13:Plaintiff also argues in the May 28, 2015 affidavit that "defendant's money is derived mostly from her late-father's roles as CEO and Chairman of [a major tobacco company]."
Footnote 14:In his affidavit in support, dated May 28, 2015, of his order to show cause, plaintiff avers that defendant's counsel had "previously threatened" to try and have him arrested during the course of the pendente lite custody negotiations outside of the hallway. Plaintiff's counsel detailed in her affirmation dated June 12, 2015 that she "stand by [her] earnest representation...that [her] client and [she] have both been subject to threats both overt and thinly veiled" during the litigation. She contends that she has faced "malevolent intentions toward [her] client and by extension [she] believes, toward [herself]" behind "a veil of humor" or "a feigned show of helpfulness..." Defendant's counsel categorically denies making any threats against plaintiff or plaintiff's counsel.
Footnote 15:The Court notes that while plaintiff characterizes the instant application as a "cross-motion" that it was filed as an order to show cause, not as a cross motion.
Footnote 16:The briefing schedule was set on the record on May 20, 2015 on consent of all parties.
Footnote 17:Defendant argues that plaintiff's bank records reveal additional earlier purchases of spyware as well; however, plaintiff did not commence this action until October 28, 2014.
Footnote 18:In Berliner, a consultant for the wife discovered that a program known as "Home Key Logger", which records all keystrokes made on a computer, had been installed on the wife's computer without her knowledge and that, at approximately the same time, certain confidential files had been removed from her computer by disc or e-mail.
Footnote 19:The Court notes that in the same decision the trial court found the husband in Berliner to be in contempt of court orders and incarcerated him for ten (10) days. One of the orders the husband violated that resulted in his incarceration was his failure to preserve the evidence of his conduct with respect to the wife's computer files where it was found that he engaged in spoliation of evidence in violation of court order subsequent to the wife's discovery that her private computer files had been compromised. The Appellate Division, Second Department affirmed the trial court's contempt adjudication (see Berliner v. Berliner, 33 AD3d 745, 823 NYS2d 189 [2 Dept.,2006]).
Footnote 20:The Court is fully aware of the case law surrounding the issues of the Fifth Amendment and encrypted documents and private keys/passwords; however, at this time, there are no issues regarding encryption or passwords before the Court. In the instant application this Court is solely presented with the issue of whether documents stored on plaintiff's computing devices are discoverable under the facts and circumstances presented here. Certainly, the Supreme Court of the United States has stated, in dicta, that "being forced to surrender a key to a strongbox" is not testimonial, but "being compelled to reveal the combination to [a] wall safe" is (Doe v. United States, 487 U.S. 201, 210 n.9 (1988). The issue of any passwords and/or encryption issues is not before the Court at this time.
Footnote 21:There is no evidence or claim at present that plaintiff's counsel knew, or could have known, that defendant would be making this allegation.
Footnote 22:Plaintiff filed an application [motion sequence #2] seeking various pendente lite relief, including child support and maintenance. It appears that the parties agree that they entered into this "private" agreement resolving the pendente lite support issues and that plaintiff withdrew motion sequence #2.